Partial agreements still have value
Even when a full agreement is not reached, mediation often clarifies the issues in dispute, identifies areas of common ground, and reduces the number of matters that need to be resolved through other means. A partial agreement — for example, on a return-to-work arrangement even where compensation is not resolved — can significantly reduce the scope and cost of any subsequent proceedings.
What comes next — by dispute type
| Dispute type | Typical next step after failed mediation |
|---|---|
| Unfair dismissal | FWC conciliation conference; if unresolved, hearing and arbitration |
| General protections | FWC conference; if unresolved, Federal Court proceedings |
| Workplace bullying | FWC anti-bullying application; investigation; WHS regulator referral |
| Interpersonal conflict | Formal HR process; performance management; redeployment or separation |
| Discrimination | State or federal anti-discrimination commission; human rights complaint |
Did the mediation fail — or break down early?
It is worth asking whether mediation genuinely failed or simply broke down before it had a real chance to work. Common reasons mediation does not succeed include: insufficient preparation, one party attending under duress, a mediator not suited to the type of dispute, or the format not matching the circumstances (for example, a joint session in a situation that needed shuttle format). A second attempt with a different mediator or format sometimes resolves matters that did not settle the first time.
Confidentiality after failed mediation
The confidentiality of the mediation process continues after it ends. What was said during mediation cannot be used in subsequent Fair Work Commission proceedings or litigation. The fact that mediation was attempted (and failed) may be disclosed, but the content of the discussions may not.
Getting advice on next steps
We recommend both parties seek independent legal advice after a failed mediation before deciding next steps. An employment lawyer can advise on the realistic prospects of the available options, the likely costs, and the timeframes involved.
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